[2] Whether there should be special circumstances that can be viewed as the debtor's act as the requirement to deny the execution act pursuant to each subparagraph of Article 100 (1) of the Debtor Rehabilitation and Bankruptcy Act (negative)

[3] Whether there are special circumstances that can be deemed as having been substantially identical to the “a repayment made by an obligor with knowledge that the obligor would harm any bankruptcy creditor” as a requirement to deny the enforcement act pursuant to Article 100(1)1 of the Debtor Rehabilitation and Bankruptcy Act (affirmative), and whether there are special circumstances (affirmative)

1. Regarding ground of appeal No. 1

A. The lower court rejected the Plaintiff’s assertion that the act of the Plaintiff, a debtor, jointly and severally guaranteed the Nonparty’s debt owed to the Defendant constitutes “the act of having known that the debtor would damage any rehabilitation creditor or any rehabilitation secured creditor” as prescribed by Article 100(1)1 of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”).

On December 29, 2014, the rehabilitation claim reporting period, the Defendant reported the Plaintiff’s joint and several surety claim as rehabilitation claim, and the Plaintiff, the custodian, raised an objection to the whole of the above claim. The instant claim constitutes “a claim with executive title,” as prescribed by Article 174(1) of the Debtor Rehabilitation Act, and thus, the Plaintiff, the Plaintiff, who is an objection, may raise an objection only pursuant to “litigation procedures available for an obligor” during the period from January 22, 2015, the end of the inspection date, within one month (Articles 174(1) and (3), and 170(2) of the Debtor Rehabilitation Act). However, the Plaintiff did not assert an objection by the said litigation procedures within the said period, and thus, the said claim should be deemed to have been recognized (Article 174(4) of the Debtor Rehabilitation Act). As a result, as long as an objection raised against the foregoing claim becomes effective, the existence of the instant joint and several surety claim can no longer be asserted by exercising the right to set aside.

B. Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the interpretation of Article 174 of the Debtor Rehabilitation Act, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. According to the provisions of each subparagraph of Article 100(1) of the Debtor Rehabilitation Act, an act subject to avoidance is, in principle, an act of the debtor. However, even if there was no act of the debtor, in cases where it is possible to exceptionally deem the act of the creditor or a third party to be identical to the act of the debtor due to special circumstances, such as the collusion with the debtor, the act of the creditor or the third party may be subject to avoidance (see Supreme Court Decision 2011Da5637, 56644, Oct. 13, 201, etc.).

The latter part of Article 104 of the Debtor Rehabilitation Act provides that the right to set aside may be exercised even when an act to set aside is an executory act. However, unlike Article 100(1) of the Debtor Rehabilitation Act stipulating the subject of the act subject to the right to set aside as the debtor, Article 104 of the same Act does not impose any restriction. The phrase “when an act is an executory act.” This is because, as a matter of course, an act to set aside is naturally planned by the enforcement agency, including the enforcement court, and in such a case, there is no room for involvement of the debtor’s act. Therefore, the denial of an executory act under each subparagraph of Article 100(1) of the Debtor Rehabilitation Act does not necessarily require any special circumstance to view it as identical to the debtor’s act. However, even when the right to set aside is exercised, it shall meet the requirements falling under any subparagraph of Article 100(1) of the Debtor Rehabilitation Act (see Supreme Court Decision 209Da76362, Nov. 24, 2011).

Therefore, when denying an enforcement act pursuant to Article 100(1)1 of the Debtor Rehabilitation Act, a special circumstance is required to deem that the enforcement act is practically identical to the “a repayment performed by the debtor with knowledge that the debtor would prejudice any bankruptcy creditor” by nature of the debtor’s intentional avoidance that requires a subjective requirement, such as actively inducing the debtor to enforce the said act, by virtue of the nature of the debtor’s intentional avoidance, by virtue of the nature of the debtor’s intentional avoidance that requires a subjective requirement. As to the existence of such special circumstances, the burden of proof exists on the part of the debtor who asserts the intentional denial.

B. The court below rejected the Plaintiff’s assertion as to the assignment order of this case on the ground that there is insufficient evidence to acknowledge that the Plaintiff, a debtor, intentionally caused the Defendant’s compulsory execution with the awareness that the Plaintiff would make repayment only to the Defendant in order to avoid the principle of creditor equality, or that there is no special circumstance to deem that the assignment order of this case was actually identical with the Plaintiff’s repayment with such awareness, on the premise that such special circumstance is required in order to be recognized as an intentional father under Article 100(1)1 of the Debtor Rehabilitation Act regarding the enforcement act.

C. Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the burden of proof of intentional denial, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)